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Wednesday, August 17, 2005

Why size matters (in legal scholarship)

The always provocative Brian Leiter has this amusing post responding to a recent solicitation in a mass mailing to law professors from the Fordham Law Review concerning the length of law review articles.  In addition to spurring some interesting comments on law review practices, Leiter's post has me thinking again about the unusual realities of the marketplace for legal scholarship, especially as it relates to the length of articles.

The marketplace of academic writing is fascinating, and the marketplace for legal academic writing is especially quirky (and surely worthy of extended discussion someday on The Becker-Posner Blog).   Money plays only a minor role in this marketplace (except perhaps in the casebook arena); the main forces in the market seem to be the quest for tenure and aspirations for professional prestige.   Consequently, senior faculty (particularly those on tenure committees) and law review editors (particularly those who select articles at "top" journals) have a profound influence on the market.

One reason law review articles have grown so long, in my view, is that a constructed market norm has developed  around the idea that a "serious" or "major" piece of scholarship has to be at least 50 pages.  This norm has been enforced by senior faculty members who expect to see a certain number of "major" (i.e., long) pieces in a tenure file and by law review editors who select a certain number of "major" (i.e., long) pieces for publication in each volume. 

For many reasons (which will require another post to articulate), I think this "size norm" is quite harmful to the overall health of legal scholarship and to legal scholarship's role in the legal profession.  [Self-promoting disclaimer: I edit two journals, the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law, that take pride in devoting some or all of its pages to shorter articles.I was very pleased to see the new policies adopted by leading law reviews, well discussed here by Orin Kerr, seeking to limit the length of articles they will publish.  However, I suspect that senior faculties are going to have to start valuing and rewarding shorter articles and other writings (including blog scholarship?) before we can expect to seeing any real evolution in the size norm.

One interesting and telling reality of the size norm is that senior faculty rarely follow it.  For example, in the recent Columbia Law Review symposium issue on sentencing, which has an amazing collection of articles from an amazing collection of (mostly  senior) authors, not a single one of the 14 articles runs over 50 pages and most check in between 30 and 40 pages.

Posted by Douglas A. Berman on August 17, 2005 at 10:46 AM in Life of Law Schools | Permalink


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This is off topic- but has the yale law journal announced who they've asked to do those symposium pieces? i sent in a proposal and then had a long back and forth with a YLJ editor who wanted more info, more clarification, etc. which I dutifully provided some weeks back... then nary a word since. have they not made up their minds? or have they nixed me with out so much as a "dear john" letter?

Posted by: enquiringmind | Aug 17, 2005 8:52:26 PM

On the length of the symposium pieces, is that because the symposium imposed a length limit? Yale's upcoming symposium has a 35 page (maybe 30 or 40 -- I don't have the email in front of me) limit, although I am sure some people will exceed it.

Posted by: Abigail | Aug 17, 2005 6:43:36 PM

Orin: you are exactly right. That’s why I mentioned in my original comment that survey papers in other disciplines are often written by top academics who (a) know the field inside out, and (b) wouldn’t put their reputations on line by butt-kissing, embellishing, or omitting something in their surveys. Those surveys are authoritative pieces of scholarship in their own right; they are peer-reviewed, widely read, and taken seriously, so incentives for cheap politicking are greatly diminished.

Posted by: Kate Litvak | Aug 17, 2005 5:50:58 PM

I feel like these generalities aren't so helpful. I don't do 30 page lit reviews and I know few people who do. Often in the long pieces, people who do lots of scaffolding are explaining how an area of law works to non-specialists, not just surveying what different people think about the law. In Kate's case, she can opt out and publish in (peer reviewed) finance journals if she prefers, with no blowback. I suspect that's the case with others too. There are peer review options out there. My first article was in one, and frankly, I prefer having my stuff in the student journals because the editing process is helpful and because I like to reach to a broader audience of generalists. Let a thousand flowers bloom. Fordham's choice is one of the tulips, methinks.

Posted by: Dan Markel | Aug 17, 2005 5:43:16 PM

I'm basically with Kate, with a caveat. I think the deeper problem with 90-page articles that include 30-page literature reviews is that the literature reviews are usually pretty bad. Too often, the purpose is less to review the literature than it is to prove that the author is well-read, and to give a "shout out" to big fish that the junior scholar knows or wants to impress. Spoon-feeding the entire history of a field is not very useful, but my sense is that most literature review sections don't even do that very effectively.

Posted by: Orin Kerr | Aug 17, 2005 5:24:25 PM

Dan: telling the reader which parts can be skimmed partly solves the problem of the reader’s time, but not the problem of the author’s time, the journal’s space, and the editor’s effort.

Our disagreement seems to be over the responsibility that the reader bears in understanding scholarly papers. If we decide (like every academic field outside the law does) that the reader is responsible for knowing the background, then, it takes no more than two pages to show “where my paper fits in the literature.” E.g., econ papers typically point only to very recent papers and explain why their contribution is different. The reader is assumed to be an intelligent being capable of reading survey articles to compensate for his ignorance of the field.

But when we decide that it’s the job of the author to spoon-feed the entire history of the field in every published paper, we end up with the scandalous practice of 90-page articles. And with an enormous waste of scholarly resources that accompany this practice.

Posted by: Kate Litvak | Aug 17, 2005 5:06:37 PM

Pah, dilettantism has a varied and distinguished history in legal scholarship, and I see no reason why people doing interdisciplinary work especially shouldn't make it easier for their readers to follow along and engage.

Posted by: Paul Gowder | Aug 17, 2005 4:44:58 PM

I see that the beatings are being delegated, and on my own home turf too. Ethan, that something is long doesn't mean that it is turgid or inaccessible of course. Kate, responsible writers can tell advanced readers which parts to skim, and they often do. And I'm not suggesting that surveys be written, but in order to establish that a contribution is being made, one can't just show up and announce it. You should show where in the literature this fits. Establishing why you come before the tribunal of the contemporary is akin to showing how your patent is built on, but departs from, the prior art. So it's about striking the right balance...

Posted by: Dan Markel | Aug 17, 2005 4:23:31 PM

Dan: people who want background readings should read survey papers, instead of demanding that every plausibly confusing idea be spoon-fed to them in every printed article. The current norm/requirement to survey the field in *every* article (a) wastes authors’ valuable time, which should be spent on original research, rather than endless regurgitation of other people’s writings; (b) wastes readers’ valuable time on trying to figure out which part of a 90-page article constitutes an original contribution; (c) wastes journals’ valuable space, and (d) wastes editors’ (substantially less) valuable time. There is a good reason why every academic field outside law keeps introductions to the minimum and steers curious dilettantes to survey papers published (often by top academics) in separate journals.

Posted by: Kate Litvak | Aug 17, 2005 4:02:45 PM

You "love" "bloated footnotes"? You are a sick man, Danny. And I find it curious that you equate accessibility with length. The longer something is, the less likely I am to want to touch it if it is outside my fields.

Posted by: Ethan Leib | Aug 17, 2005 2:56:49 PM

I would very interested in reading more on the harm that previous “size norms” caused to the relationship between legal scholarship and the legal profession, and whether recent efforts to alter this orthodoxy have any effect. Coming out of 11 years of practice to join the world of law teachers, I always was very disappointed at the small role that that I saw legal scholarship play in many segments of the legal profession, including the judiciary, at least at the state level. While many practitioners would say that they reject legal scholarship as unreadable ivory-tower musings, I think in truth most simply do not have the time to read such long pieces, and might be more interested in incorporating scholarship into their practice if it was more accessible. Yet, I also generally have sensed that practitioners have been at best a tertiary audience with most legal scholarship, behind other law scholars and law students, and maybe also federal judges. Is an effort to make legal scholarship more accessible to the legal profession a real motivation behind the movement to shorten article length?

Posted by: Brooks | Aug 17, 2005 2:56:41 PM

I probably will endure beatings from BL about this when he comes to visit FSU in a couple weeks, but I think he's a bit hard on the Fordham folks. As someone writing large pieces now, I worry a bit about the zoning regulations at some of the law reviews. I, for one, love the bloated footnotes at the beginning that allow a neophyte to survey the landscape of a particular area, and I'm glad that we try to make our writing accessible enough so that not only specialists can read and potentially profit from what we write. That accessibility can often be purchased only at the cost of lengthy explanation. Those with prior expertise generally can be directed to the important parts of the paper, and will skip the scaffolding.

Posted by: Dan Markel | Aug 17, 2005 2:48:21 PM

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